August 19, 2014 IER Technical Assistance Letter on requesting immigration status information

· ,
U.S. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration-Related
Urifair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
August 19, 2014
BY EMAIL (Athena@MiGTRI.org)
Athena Trentin
Global Talent Retention Initiative of Michigan
325 East Grand River Ave.
Suite 275 East
Lansing, MI 48823
Dear Ms. Trentin:
Thank you for contacting the Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC). This is in response to your e-mail dated July 16,2014, in which
you request guidance as to whether your organization may include information in an
international student registry system indicating whether student candidates for employment
"have already applied for their Optional Practical Training (OPT) yet and if so, what are their
approval dates. If not, when are they eligible to apply and/or for which dates do they expect to
be approved." You explain that your organization partners with universities "to help connect
their international students to employers in Michigan who need special linguistic/cultural skills
and/or are having a hard time filling engineering and IT positions for internships and practical
training opportunities." You ask whether "requesting this information from international
students and then providing it voluntarily for employers to review would conflict with any U.S.
regulations," and if so, whether there is an alternative way to collect this information.
OSC investigates and resolves charges of national origin and citizenship status
discrimination in hiring, firing, or recruiting or referring for a fee; discriminatory documentary
practices in the employment eligibility verification (Form 1-9 and E-Verify) process; and
retaliation under the anti-discrimination provision of the Immigration and Nationality Act (INA),
8 U.S.C. § 1324b. OSC cannot provide an advisory opinion on any specific case or set of facts.
Nor can we advise on whether a proposed-practice violates a law or regulation enforced by
another office or agency. However, we can provide general information on compliance with the
anti-discrimination provision of the INA.
The anti-discrimination provision of the INA and its implementing regulations prohibit a
person or other entity from discriminating against any individual in hiring or recruitment or
referral for a fee because of an individual's national origin or citizenship status. 8 U.S.C. §
1324b(a), 28 C.F.R. § 44.200(a)(1). The INA's prohibition against national origin discrimination

extends to all work-authorized individuals. See 8 U.S.C. § 1324b(a)(1)(A), 28 C.F.R. §
44.200(a)(1); see also Salazar-Castro v. Cincinnati Public Schools, 3 OCAHO No. 406 (1992).
The prohibition against citizenship status discrimination extends to U.S. citizens, recent lawful
permanent residents, asylees and refugees. See 8 U.S.C. §§ 1324b(a)(1)(B) and 1324b(a)(3), 28
C.F.R. § 44.200(b)(1)(iii).
From the limited information provided, it is unclear whether your organization would be
considered a recruiter or referrerJor aJee directly subject to the INA's anti-discrimination
provision. However, the anti-discrimination provision of the INA does not directly prohibit a
recruiter or referrer for a fee from simply asking whether international students have applied for
or intend to apply for OPT and asking for their actual or expected OPT approval dates.
We note that, as is the case with a recruiter or referrer for a fee, an employer that merely
asks whether international students have applied for OPT or asks for approval dates is unlikely to
violate the anti-discrimination provision of the INA. Nevertheless, collecting and making
available the information you describe may lead prospective employers to engage in hiring
practices that could violate the anti-discrimination provision of the INA in certain circumstances.
To the extent your organization's registry leads a prospective employer to prefer non-immigrant
non-citizens over authorized U.S. workers in hiring, the employer's hiring decision could violate
the anti -discrimination provision of the IN A. I Therefore, from a compliance perspective, we
would discourage this practice and do not recommend an alternative method for providing
prospective employers with student candidates' OPT application and approval dates to be used as
a selection criteria in hiring.
We encourage you to visit our website (www.iustice.gov/crt/about/osc) or to contact our
toll-free employer hotline (1-800-255-8155 or TTY 1-800-237-2515) if you would like to learn
about resources available to assist your organization's staff in complying with the anti
discrimination provision in the future, such as through free webinar training by our office or
distribution of educational materials to your staff.
Sincerely,
Alberto Ruisanchez
Deputy Special Counsel
1 Similarly, a prospective employer's preference for hiring certain candidates over other work-authorized candidates
based on national origin (including based on linguistic and cultural skills) could violate the anti-discrimination
provision's prohibition against national origin discrimination.